Why doesn't Australia have a bill of rights?

Australia is the only Western democratic country with neither a constitutional nor a legislative bill of rights.  This defect came about by decision of the founders in the 19th century. 

When the Australian constitution was being designed, there were three elements that differentiated it from the United States precedent.

The Federal Commonwealth would be established under the Crown.
The Executive would sit in Parliament.
The rejection of a notion of a general bill of rights.

Discussion at the time echoed the prevailing racism of Australia with fear expressed that provisions in a bill of rights would undermine some of the discriminatory laws, including those laws and practices which disadvantaged Aboriginal people and the Chinese in Australia. (enlightened bunch we are…)

The founders rejected a bill of rights as an American intrusion into notions of parliamentary sovereignty. A bill of rights has the tendency to politicize the courts. Former Australian Prime Minister John Howard argued against a bill of rights for Australia noting that it transfers power from elected politicians to unelected judges and bureaucrats.

“In the Australian context the adoption of a Charter or Bill of rights would represent the final triumph of elitism in Australian politics – the notion that typical citizens, elected by ordinary Australians, cannot be trusted to resolve great issues of public policy, and that the really important decisions should be taken out of their hands and given to judges who, after all, have a superior capacity to determine these matters.” – John Howard (I promise that this will be the only time I ever quote John Howard)

Actual photo of John Howard . -nakedfella.com

Nevertheless, some of the provisions contained in the Australian Constitution are equivalent to bill of rights provisions.  As we all know from the film The Castle the law emphasizes that the acquisition of property for the purposes of the Commonwealth, must be on just terms. The constitution promises that trade, commerce and intercourse (well not the fun intercourse) would be free. There are also promises for religious freedom, trial be jury and right to free political expression. 

Moreover, Australia has ratified seven of the eight major international human rights treaties. So at the international level, we have a suite of human rights guarantees and the Australian government has concomitant obligations. The problem with the international system is it lacks a "policing system" that can enforce those obligations. Note: The lack of a policing system is how Australia gets away with our current stance on Immigration and Asylum Seekers.

Despite these safeguards there are many examples that highlight the present incapacity of Australia’s courts when faced with important constitutional challenges (Al-Kateb v Godwin, 2004). Invariably those left unprotected are often powerless to change the system. The promise of a robust bill of rights is the empowerment of marginalized groups. For many Australians the legal system is not working as mechanism for freedom, but as an instrument of oppression.

A bill of rights alone will not protect the rights of the people. But nor does majoritarian democracy in Parliament. It is necessary to put some of the values of our society above the party political debate. Amongst the current election rhetoric, we should not forget the importance of a debate on an Australian bill of rights.

note: Victoria and the Australian Capital Territory (ACT) are the only states and territories to have a their own independent human rights bills.